IN THE SUPREME COURT OF BELIZE, A. D. 2019

CLAIM NO. 124 OF 2019

(OLIVIA SYLVIA VILLANUEVA CLAIMANT

(

BETWEEN (AND

(

(THE ATTORNEY GENERAL OF BELIZE DEFENDANTS

(MINISTER OF NATURAL RESOURCES

BEFORE THE HON. ACTING CHIEF JUSTICE MICHELLE ARANA

APPEARANCES:

Mrs. Deshawn Arzu-Torres for the Applicant/Claimant

Mrs. Samantha Matute -Tucker, Assistant Solicitor General, and Mr.

Kileru Awich, Crown Counsel for the Respondents/Defendants

J U D G M E N T

1. This is an Application for the Assessment of Damages for the unlawful

acquisition of property comprising 102.53 acres situate at Turneffe Island

Range, Belize District.

Facts

2. The Claimant, Olivia Villanueva, is a Businesswoman of Belize City,

Belize. On January 30th, 2008, Mrs. Villanueva purchased by Minister’s Fiat

Grant No. 312 of 2008 properties from the Government of Belize

comprising of 105 acres of land situate at Hicks Caye, Belize District and

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another Minister’s Fiat Grant No. 312 of 2008 comprising 102.53 acres

situate at Turneffe Island Range, Belize District (hereinafter referred to as

“the properties”).

To date, the Defendant has issued title to the Hicks Caye property, Plan No.

2242, New Grant No. 105 of 2016, to the Claimant and remaining issue for

determination surrounds compensation for the Turneffe property as no

alternate property was located.

The Claimant filed a Fixed Date Claim Form seeking declaration and

damages for loss of use or of opportunity of these two properties. Upon the

matter being called up, the Parties entered into a Consent Order one of the

terms being that:

“i. The Defendants are to transfer and issue title to the property

situate at Hicks Caye and comprising of 105 acres of land, as

shown in Survey Plan No. 2242, situate along the Northern

Seacoast near the center of Hicks Caye, approximately 13.5

miles northeast of Belize City, Hicks Caye, Belize District (Plan

No. 2242, File No. NES-201600157) to Olivia Villanueva on or

before the 25th June, 2019.

ii. The Defendants are to locate alternate property for issuance to

the Claimant in respect of property situate at Turneffe Caye

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comprising of 102.53 acres of land, situate along the East

Coast of the Turneffe Islands. Approximately 29.9 miles

southeast of Belize City, Turneffe Atoll, Belize District on or

before the 25th June, 2019. Failing a satisfactory settlement of

the matter, the Claimant shall file an application for assessment

of damages on or before the 28th June, 2019. The application

shall be heard by way of Affidavit evidence.”

The Defendants were able to comply with paragraph 1 and have since issued

title to the Claimant for property located at Hicks Caye. The Defendants say

that the parties have been unable to agree on a satisfactory alternative

property. The instant application seeking an assessment of damages has

been filed by the Claimant in order to determine the amount payable to the

Claimant by the Defendants for the alleged breach of contract in relation to

the property situated at Turneffe Caye comprising 102.53 acres.

The Claimant has filed its application for assessment of damages which is

supported by the evidence of the Claimant herself and is the Affidavit of

Talbert Brackett Sr., Certified Land Valuer. The Turneffe property is said

property to be valued at BZ$5,639,000.00.

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Legal Submissions on behalf of the Claimant

3. Mrs. Arzu-Torres argues on behalf of the Claimant that in light of the

Defendants’ failure to locate alternate property in respect of the Turneffe

Island property, damages must now be assessed for breach of contract. Mrs.

Villanueva duly paid to the Government of Belize the purchase price for the

Turneffe Property and she received titles thereto. She was, however,

informed that there was an issue with the title which had to be rectified but

was later informed that the land had been sold off to another individual or

entity by the Government of Belize. Mr. Talbert Brackett, licensed Valuer,

has caused a valuation of the property to be undertaken. In his report, Mr.

Brackett states the following:

“I have personally inspected the subject property and considered all

available factors affecting the property value and to determine a fair

market value of the existing property to be SAY FIVE MILLION SIX

HUNDRED AND THIRTY NINE THOUSAND DOLLARS.”

4. Mrs. Arzu-Torres urges the reasoning of the Court in the Court of Appeal

decision in Emy Gilharry Ramirez v the Attorney General (Supreme Court

Claim No. 5 of 2004) where the Court found that the value of the land was to

be treated as the adequate measure:

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“At common law, the measure of damages is aimed at putting the

purchaser in the position he would have been if the contract had been

completed. (Engell v Fitch (1869) L. R. 4 Q.B. 659 Ex. Ch. At p666).

The usual measure of damages for the failure of the vendor to

complete is the market value of the property as at the date specified

for completion under the contract less the contract price (McGregor

on Damages, 18th Edition para 22-005). However, as was recognized

in Suleman v Shahsavsri et. al. [1988]1 WLR 1181 at p1183, this

general rule is not absolute and the damages may be assessed

referable to the value at some other date depending on the

circumstances of the cases.”

5. Learned Counsel for the Claimant also relies on Claim No. 373 of 2013

Deborah Spain v. The Commissioner of Lands and Surveys and the AG.

In that case, the Claimant had applied in 2006 to lease a parcel of land in San

Pedro Town and was granted permission to do so. In 2009, the

Commissioner of Lands and Surveys cancelled the lease.

At trial, the Defendant submitted that the compensation sought should be

calculated on the basis of the leasehold interest and that the measure of

damages where the lessee’s land is cancelled without just cause is the value

of the unexpired term of the lease. The Claimant submitted that the Lessee

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was to be treated as a purchaser of the property and the measure of damages

ought to be the market value of the property at the contractual time for

completion less the contract price.

The Court in finding for the Claimant held that the “the failure to complete

the contract for the sale of the property attracts the normal measure of

damages which is the market value of the property at the contractual time

for completion less the contract price.” (McGregor on Damages, 18th

Edition, paragraph 22-005).

6. Mrs. Arzu - Torres also relies on the decision of this court in Claim No. 380

of 2013 Compton Fairweather v The Belize Defence Force where the court

went on to review the method of assessment of damages by the Valuer and

reported as follows:

“I find that the property should be assessed based on the current

market value. I accept as correct the submissions on the law made by

Mr. Lindo SC. I have perused the valuation report submitted by Mr.

David Aguilar. I note his academic credentials and experience. I also

note that in determining the market value Mr. Aguilar used the Direct

Comparison Method or Sales Comparison Approach which is

determined by direct units of comparison where value can be

converted to price per square foot, acres, rooms, units or income

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multipliers and overall rates. The theory is that a prudent investor

would pay no more than what the typical market purchaser would pay

for a comparable facility, all things being equal. The comparison

method of valuation is used mainly for residential property. The

method applies to capital values. He also considered the present

Open Day Value of the land occupied by the Government of Belize in

its existing condition, as well as the fair rent due to the landowner for

use of his property between the years 1986 to the present date. Mr.

Aguilar stated that the highest and best use for property in this

location is for its subdivision into lots for sale for residential use and

/or commercial/industrial use. I therefore award the sum of

$328,741.85 to Mr. Compton Fairweather to be paid by the

Defendants as damages.”

7. In the case at bar, Mrs. Arzu-Torres submits that the market value of the

property was assessed as at BZ$5,639,000.00 and that a similar methodology

was utilized by the Valuer, Talbert Brackett. Damages ought to be paid to

the Claimant in the said amount together with interest and costs. In respect

of loss of use of the Claimant’s property, it is submitted that damages be

paid on account of the Claimant’s inability to construct or develop her

property from the date of cancellation of her title to today’s date.

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Legal Submissions on behalf of the Defendants

8. Mrs. Matute-Tucker concedes on behalf of the Defendants that the general

rule is that where there has been a failure to complete a contract for the sale

of land, the normal measure of damages is the market value less the

purchase price. Learned Counsel cites McGregor on Damages 15th Ed. at

Paragraph 904:

“The normal measure of damages is the market value of the property

at the contractual time for completion less the contract price…”

It is submitted on behalf of the Defendants that the most comparable

properties in Mr. Brackett’s “Table of Comparable Data” in his Valuation

Report would be Units 1, 2, 5, and 6 highlighted in yellow which would

provide a reasonable range of value. However, it is noted that Unit 3 which

is within the same Block number and Entry number as Unit 5, and which is

bigger than Unit 5, was not considered a comparable property. Two are

similarly categorized as unimproved land, but there are distinguishable

differences between Unit 3 and Unit 5, the price paid for each property and

period within which the properties were purchased. The price paid for Unit

3 is BZD$205,000 or $24,641.00 per acre for 8.21 acres in February

2018, while the price paid for Unit 5 is USD$175,000.00 (BZD$363,175)

or BZD$109,375.00 per acre for only 3.2 acres in September 2012.

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Based on this comparison, it may be suggested that the purchase of Unit 5 in

2012 may have been a unique situation, since from the values provided for

the other Units, most of which were purchased in 2018 show a significant

difference and decline in the value of land in the area, being within the range

of BZD$21,551.00 and BZD$25, 641.00 per acre for between 8 to 9 acres of

land.

The Defendants say that, a similar conclusion can be reached as in Unit 5, in

relation to the purchase of Unit 6 for $600,000 for only 3.03 acres, or

$198,019.00 per acre, in that it may have been a unique situation when that

property was purchased, since all recent purchases in 2018 have shown a

decline in the value of land in the area. The Defendants also say, that stamp

duty payable on the transfer of land is on the consideration or value of land

as stated in Section 72 of the Stamp Duty Act Chapter 64 of the Laws of

Belize.

The Defendants ask that the court disregard Mr. Brackett’s suggestion that

property buyers submit a price lower than the price at which properties are

sold for in order to pay lower stamp duty and he adjusted the values on the

properties accordingly. The Defendants say that the higher values for Units

5 and 6 are anomalies and not true reflections of the market value in an open

market for undeveloped acreage of land on Turneffe Caye.

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In conclusion, the Defendants asked that the Court appoint an expert to

determine the true market value of the property on Turneffe Caye, or that the

Court accepts the comparable Units 1 and 4, as reflecting the true market

value of property in the area being between BZD$21,551.00 and BZD$25,

641.00 per acre.

Decision

9. I thank both Counsel for your legal submissions on this assessment of

damages. It is true and indeed beyond question that the true measure of

damages is as stated by McGregor on Damages 18th Edition:

“The usual measure of damages for the failure of the vendor to

complete is the market value of the property as at the date specified

for completion under the contract less the contract price.”

I note the objections to the value of this property as articulated by Counsel

for the Defendants in their submissions on this application. It is unfortunate

that the Defendants did not seek to cross-examine Mr. Brackett on his report

and have him address these concerns or any challenges they wished to make

to his report, nor did they apply to the court to have their own Valuation

Expert offer an alternative report for the court to consider in determining

the quantum of damages to be assessed and awarded to the Claimant.

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As it stands, the Court has examined the report of Mr. Brackett. He is a

Seniour Certified Land Economist and Valuation Surveyor, trained at the

University of Technology in Jamaica; he is a member of the Belize

Association of Valuation Surveyors and the Commonwealth Heads of

Valuation Agencies. He also holds a Certificate in Property Valuation from

the National Institute of Valuation in Malaysia, South Asia, and has testified

before these courts on many occasions as an expert.

Mr. Brackett has informed the Court in his report that in assessing the value

of this property, he used the Direct Comparison Approach of Valuation.

This approach is based on the economic principle of substitution. The

principle expresses the fact that the given value of a property should be no

more than the cost of buying another substitute property. Other recent

property sales are compared to the subject property on factors such as legal,

physical, location and economic characteristics.

He stated that the property being evaluated consist of 102.53 acres of land

situate on the Turneffe Islands. The main industry in the area is fishing and

tourism where the vicinity is situated along a natural migration routes for

fish and feeding ground for conch and lobster. The fishing industry

supports many families on the islands. The Turneffe Islands has long been

recognized as one of Belize’s premier saltwater fly fishing, scuba diving

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and marine ecotourism destinations. The property has approximately

2,715.812 on the South of Sea Frontage.

In his estimation, the highest and best use of the land is for commercial land

use. I also bear in mind the fact that the Claimant has not had the use of

her land since the Defendants cancelled her title to this valuable property.

Using the Direct Comparison Approach, Mr. Brackett has valued this

102.53 acres of property is $BZD 5,639,000.

The Court therefore, accepts this Valuation as an accurate estimate of the

value of this property and awards the sum of $BZD 5,639,000 to be paid to

the Claimant by the Defendants. Costs awarded to the Claimant to be paid

by the Defendants to be agreed or assessed.

Dated this day of March, 2021

_____________________

Michelle Arana

Chief Justice (Acting)

Supreme Court of Belize